(PC) Smith v. Parriot ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAWRENCE CHRISTOPHER SMITH, 1:19-cv-00286-JLT-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT 13 vs. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT BE GRANTED, 14 PARRIOT, et al., WITHOUT PREJUDICE TO FILING A PETITION FOR WRIT OF HABEAS 15 Defendants. CORPUS 16 (ECF No. 47.) 17 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 18 19 20 21 I. BACKGROUND 22 Lawrence Christopher Smith (“Plaintiff”) is a state prisoner proceeding pro se and in 23 forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. This case now 24 proceeds with the First Amended Complaint filed on September 10, 2020, against defendants 25 Cantu,1 W. Gutierrez, and Mattingly (“Defendants”) for use of excessive force in violation of the 26 Eighth Amendment. (ECF No. 22.) 27 28 1 Sued as Canto. 1 On September 15, 2021, Defendants filed a motion for summary judgment on the grounds 2 that Plaintiff failed to exhaust administrative remedies and pursuant to Heck v. Humphrey.2 (ECF 3 No. 47.) 4 On November 8, 2021, the court issued an order imposing a stay of discovery, except for 5 discovery pertaining to the issues raised in Defendants’ motion for summary judgment, pending 6 resolution of the motion for summary judgment. (ECF No. 51.) Plaintiff was granted until 7 November 22, 2021, to serve discovery requests related to the issues in the motion for summary 8 judgment. (ECF No. 51 at 3:23-27.) The discovery deadline was extended to January 15, 2022, 9 and Plaintiff was ordered to file his opposition to the motion for summary judgment on or before 10 January 15, 2022. On January 21, 2022, Plaintiff filed an opposition. (ECF No. 56.) Defendants 11 have not filed a reply to the opposition. 12 Defendants’ motion for summary judgment has been submitted upon the record without 13 oral argument pursuant to Local Rule 230(l), and for the reasons that follow, the court finds that 14 Defendants’ motion for summary judgment should be granted. 15 II. PLAINTIFF’S ALLEGATIONS IN THE FIRST AMENDED COMPLAINT 16 RELEVANT TO THIS MOTION FOR SUMMARY JUDGMENT 17 Plaintiff is presently incarcerated at Corcoran State Prison, in Corcoran, California. The 18 events at issue in the First Amended Complaint allegedly took place at the California Correctional 19 Institution (CCI) in Tehachapi, California, when Plaintiff was incarcerated there in the custody 20 of the California Department of Corrections and Rehabilitation (CDCR). 21 After screening of the First Amended Complaint by the court, this case now proceeds 22 only against defendants Sergeant Andres Cantu, Correctional Officer (C/O) Wilfredo Gutierrez, 23 and C/O James Mattingly for use of excessive force in violation of the Eighth Amendment. On 24 December 10, 2020, the court dismissed all other claims and defendants from this case based on 25 Plaintiff’s failure to state a claim. (ECF No. 27.) A summary of Plaintiff’s relevant allegations 26 follows: 27 28 2 Heck v. Humphrey, 512 U.S. 477 (1994). 1 On February 25, 2015, a disciplinary hearing was held against Plaintiff, and Plaintiff was 2 found guilty with no supporting evidence of assaulting Defendant Cantu at CCI on February 4, 3 2015. 4 Upon conclusion of the disciplinary hearing, Plaintiff was escorted back to his cell by 5 Defendants Cantu, W. Gutierrez, and Mattingly. The escort was monitored by non-defendants 6 Lt. Parriot, Sgt. Cole, and C/O Cuellar. For no valid penological reason, Defendants W. Gutierrez 7 and Mattingly abruptly threw Plaintiff to the ground face first where W. Gutierrez, Mattingly, 8 and Cantu, along with several other unidentified correctional staff members, began to beat 9 Plaintiff with their hands, feet, and batons. Plaintiff’s injuries included lacerations, bruising, and 10 swelling to the torso and legs, swelling of the head and face, and possibly broken ribs. 11 Defendants Cantu, W. Gutierrez, and Mattingly, and other non-defendant prison officials 12 authored a false crime incident report against Plaintiff alleging that Plaintiff committed an 13 aggravated battery against defendant Cantu by spitting in his face. Although they had adequate 14 evidence that Plaintiff was the subject of illegal use of force, they did not author any report 15 against Defendants Cantu, W. Gutierrez, and Mattingly for their transgression against Plaintiff 16 as required by law. 17 As relief, Plaintiff seeks compensatory, nominal, and punitive damages for physical and 18 psychological pain, expungement of the guilty finding that he committed aggravated battery 19 against defendant Cantu, and restoration of lost credits due to the disciplinary finding. 20 III. DEFENDANTS’ UNDISPUTED FACTS 21 In accordance with Local Rule 260(a), Defendants Cantu, W. Gutierrez, and Mattingly 22 submitted the following Statement of Undisputed Facts pertinent to the failure to exhaust issue, 23 with references to the supporting evidence. (ECF No. 47-3.)3 24 /// 25 26 3 These facts are taken from Defendants’ Statement of Uncontroverted Facts, ECF No. 27 47-3. The court has considered all declarations and exhibits submitted in support of each statement. Plaintiff failed to properly address Defendants’ statement of undisputed facts. Local Rule 260(b). 28 Accordingly, the court may consider Defendants’ assertions of fact as undisputed for purposes of this motion. Id; Fed. R. Civ. P. 56(e)(2). 1 UNDISPUTED FACT SUPPORTING EVIDENCE 2 1. Plaintiff is a California State Prison inmate. ECF No. 1 & 22. 3 At all relevant times alleged in the Complaint, 4 Plaintiff was housed at the California 5 Correctional Institution (“CCI”) in Tehachapi, 6 California. 7 2. On February 14, 2019, Plaintiff filed a ECF No. 1. 8 Complaint brought under 42 U.S.C. § 1983 9 alleging several claims against five 10 Defendants. 11 3. On August 13, 2020, the Court issued a ECF No. 21. 12 Screening Order, pursuant to 28 U.S.C. § 13 1915A, finding that Plaintiff only stated a 14 claim for excessive force against Defendants 15 Cantu, Gutierrez, and Mattingly. The Court 16 ordered Plaintiff to either file a First Amended 17 Complaint or file a notice with the Court that 18 he intended to proceed on the claims found 19 cognizable by the Court. 20 4. Plaintiff filed a First Amended Complaint ECF Nos. 22, 24 & 27. 21 on September 10, 2020 naming seventeen (17) 22 Defendants. The Court issued Findings and 23 Recommendations and a subsequent Order 24 ordering the action to proceed only against 25 Defendants Cantu, Mattingly, and Gutierrez 26 on the excessive force claim for an incident 27 that allegedly occurred on February 25, 2015. 28 1 UNDISPUTED FACT SUPPORTING EVIDENCE 2 5. At the time of the matters at issue in the Declaration of J. Stone (“Stone Dec.) at ¶¶ 3- 3 Complaint, CDCR had a comprehensive 9; Declaration of H. Moseley (“Moseley 4 administrative appeals system for prisoners’ Dec.”) at ¶ 4; Cal Code Regs., tit. 15, sections 5 complaints, described in the California Code 3084.1(a) – 3084.7. 6 of Regulations (CCR), Title 15, section 3084, 7 et seq.1 CCR, Title 15, section 3084.1(a) 8 provides that any inmate may appeal any 9 departmental decision, action, condition, or 10 policy which they can demonstrate as having 11 a material effect upon their welfare. 12 6. Under Title 15 of the California Code of Cal. Code Regs., tit. 15, § 3084.8(b); Stone 13 Regulations, an inmate had 30 calendar days Dec. at ¶ 9 14 to submit an appeal from the occurrence of the 15 event or decision being appealed, or upon first 16 knowledge of the action or decision being 17 appealed. 18 7. To comply with regulations, an inmate was Cal. Code Regs., tit. 15, § 3084.2(a)(3); Stone 19 required to “list all staff member(s) involved Dec. at ¶ 8. 20 and [to] describe their involvement in the 21 issue.” 22 8. To exhaust the administrative appeal Cal. Code Regs., tit. 15, § 3084.7; Stone Dec. 23 process, the inmate was required to complete at ¶ 6. 24 his appeal through the Third Level of review. 25 26 27 28 1 UNDISPUTED FACT SUPPORTING EVIDENCE 2 9. If an inmate submitted an appeal that was Cal. Code Regs., tit. 15, § 3084.1(b) (2015) 3 untimely, lacked critical information, or (describing that all appeals are subject to a 4 otherwise did not comply with the regulations third level review before administrative 5 governing the appeal process, the appeal remedies are deemed exhausted, and a 6 could be cancelled or rejected, meaning it is cancellation or rejection decision does not 7 not accepted for review. The cancellation or exhaust administrative remedies); Stone Dec. 8 rejection of an appeal at any level did not at ¶ 9; Moseley Dec. at ¶ 4; see also Cal. Code 9 exhaust the appeal process. Regs., tit. 15, § 3084.6(a)-(f) (describing 10 rejection, cancellation, and withdrawal 11 criteria). 12 10. Plaintiff has submitted, and exhausted, at Moseley Dec. at ¶ 6 and Ex. 1. 13 least sixteen (16) appeals through the Third 14 Level of Appeal during the time that he has 15 been incarcerated with CDCR. Plaintiff has 16 also submitted a number of appeals through 17 the Third Level that were screened out. 18 19 20 21 22 23 24 25 26 27 28 1 UNDISPUTED FACT SUPPORTING EVIDENCE 2 11. Plaintiff submitted an institutional Stone Dec. at ¶ 12(a) and Exs. 1 & 2; Moseley 3 grievance that was received by CCI’s appeal Dec. at ¶ 8 and Ex. 2. 4 office on or about May 18, 2015. The 5 grievance was assigned Grievance Log No. 6 CCI-15-01041 and included a challenge to the 7 guilty finding on a Rules Violation Report 8 (“RVR”) Plaintiff received for assaulting 9 Defendant Cantu during an incident that 10 occurred on February 4, 2015. Plaintiff 11 claimed that Defendant Cantu lied at the 12 hearing when he claimed that Plaintiff 13 attempted to assault Defendant Cantu. In 14 addition, Plaintiff alleged that video footage 15 existed which would exonerate Plaintiff but 16 that Plaintiff was denied that evidence at the 17 hearing. Finally, Plaintiff alleged that Plaintiff 18 made no aggressive moves toward Defendant 19 Cantu on February 4, 2015 that would justify 20 Defendant’s assault of Plaintiff and that 21 Plaintiff was assaulted for no reason other 22 than Defendant Cantu being upset with 23 Plaintiff for confiscating a shaving razor 24 during assigned shower time. Plaintiff also 25 requested that the start date for the loss of 26 privileges imposed as a result of being found 27 guilty of the RVR be corrected to reflect a 28 start date of February 25, 2015. 1 UNDISPUTED FACT SUPPORTING EVIDENCE 2 12. Grievance Log No. CCI-15-01041 did not Stone Dec. at ¶ 12(a) and Ex. 2; Moseley Dec. 3 reference Defendants Gutierrez or Mattingly at ¶ 8 and Ex. 2. 4 at all. 5 13. Grievance Log No. CCI-15-01041 did not Stone Dec. at ¶ 12(a) and Ex. 2; Moseley Dec. 6 include any allegations that anyone used at ¶ 8 and Ex. 2. 7 excessive force on Plaintiff on February 25, 8 2015, or reference any force incident from 9 February 25, 2015 at all. 10 14. The Second Level of Review issued a Stone Dec. at ¶ 12(a) and Ex. 2; Moseley Dec. 11 response to Plaintiff’s Grievance Log No. at ¶ 8 and Ex. 2. 12 CCI-15-01041 on June 24, 2015, notifying 13 Plaintiff that his grievance was granted in part 14 and denied in part. 15 15. Plaintiff appealed Grievance Log No. Moseley Dec. at ¶ 8 at Ex. 2. 16 CCI-15-01041 to the Office of Appeals 17 (“OOA”) on or about July 8, 2015. The appeal 18 was assigned Log No. 1500225 and was 19 denied by the OOA on September 11, 2015. 20 21 22 23 24 25 26 27 28 1 UNDISPUTED FACT SUPPORTING EVIDENCE 2 16. Plaintiff submitted an institutional Stone Dec. at ¶ 12(b) and Exs. 1 & 3; Moseley 3 grievance that was received by CCI’s appeals Dec. at ¶ 9 and Ex. 3. 4 office on or about July 27, 2015. The 5 grievance was assigned Grievance Log No. 6 CCI-15-01573 and included allegations by 7 Plaintiff that a Correctional Officer issued a 8 misleading RVR to Plaintiff on April 16, 9 2015, which claimed that the Correctional 10 Officer found “kites” in Plaintiff’s cell when 11 in fact they were scraps of paper that had 12 names and addresses of family members and 13 religious organizations written on them. The 14 Correctional Officer who issued Plaintiff the 15 rules violation report was not Defendant 16 Cantu, Mattingly or Gutierrez. 17 17. There is no reference in Grievance Log Stone Dec. at ¶ 12(b) and Exs. 1 & 3; Moseley 18 No. CCI-15-01573 to any force being used on Dec. at ¶ 9 and Ex. 3. 19 Plaintiff on February 25, 2015. 20 18. Neither Defendant Cantu, Mattingly, nor Stone Dec. at ¶ 12(b) and Exs. 1 & 3; Moseley 21 Gutierrez were referenced in Grievance Log Dec. at ¶ 9 and Ex. 3. 22 No. CCI-15-01573. 23 24 25 26 27 28 1 UNDISPUTED FACT SUPPORTING EVIDENCE 2 19. Plaintiff appealed Grievance Log No. Moseley Dec. at ¶ 9 and Ex. 3 3 CCI-15-01573 to the Office of Appeals 4 (“OOA”) on or about September 8, 2015. The 5 appeal was assigned Log No. 1502925 and 6 was cancelled by the OOA on November 15, 7 2015 for failing to meet the time constraints 8 set forth in Cal. Code Regs., tit. 15 §§ 9 3084.1(g) and 3084.8. 10 20. Other than Appeal Nos. 1500225 (appeal Moseley Dec. at ¶ 10 and Ex. 1. 11 of Grievance Log No. CCI-15-01041) and 12 1502925 (appeal of Grievance Log No. CCI- 13 15-01573), Plaintiff did not file any other 14 appeals to the OOA during the year 2015. 15 21. Plaintiff did not file any grievances with Stone Dec. at ¶ 13. 16 CCI’s appeal office referencing any 17 allegations against Defendants Cantu, 18 Mattingly or Gutierrez or referencing any 19 excessive force used on Plaintiff on February 20 25, 2015. 21 22. Plaintiff did not file any appeals with the Moseley Dec. at ¶ 11. 22 OOA referencing any allegations against 23 Defendants Cantu, Mattingly or Gutierrez or 24 referencing any excessive force used on 25 Plaintiff on February 25, 2015. 26 27 28 1 UNDISPUTED FACT SUPPORTING EVIDENCE 2 23. Plaintiff was convicted of violating Penal Defendants’ Request for Judicial Notice 3 Code § 69 as against Defendant Gutierrez for (“RJN”) and Ex. 1 to same. 4 the incident that occurred on February 25, 5 2015 which is referenced in Plaintiff’s First 6 Amended Complaint. 7 24. Plaintiff was sentenced to 25 years-to-life Defendants’ Request for Judicial Notice 8 for violating Penal Code § 69 on February 25, (“RJN”) and Ex. 1 to same. 9 2015. 10 11 IV. SUMMARY JUDGMENT BASED ON EXHAUSTION 12 A. Legal Standards 13 1. Statutory Exhaustion Requirement 14 Section 1997e(a) of the Prison Litigation Reform Act of 1995 (PLRA) provides that “[n]o 15 action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other 16 Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such 17 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Prisoners are 18 required to exhaust the available administrative remedies prior to filing suit. Jones v. Bock, 549 19 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007); McKinney v. Carey, 311 F.3d 1198, 1199-1201 20 (9th Cir. 2002). Exhaustion is required regardless of the relief sought by the prisoner and 21 regardless of the relief offered by the process, Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 22 1819 (2001), and the exhaustion requirement applies to all prisoner suits relating to prison life, 23 Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 993 (2002). 24 “[T]o properly exhaust administrative remedies prisoners ‘must complete the 25 administrative review process in accordance with the applicable procedural rules,’ [ ]—rules that 26 are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218 27 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006)). 28 See also Marella v. Terhune, 568 F.3d 1024, 1027 (9th Cir. 2009) (“The California prison 1 system’s requirements ‘define the boundaries of proper exhaustion.’”). An untimely or otherwise 2 procedurally defective appeal will not satisfy the exhaustion requirement. Woodford, 548 U.S. 3 at 90. However, the Ninth Circuit has made clear: A grievance need not include legal 4 terminology or legal theories unless they are in some way needed to provide notice of the harm 5 being grieved. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). A grievance also need 6 not contain every fact necessary to prove each element of an eventual legal claim. Id. 7 Moreover, the Ninth Circuit has recognized that a grievance suffices to exhaust a claim 8 if it puts the prison on adequate notice of the problem for which the prisoner seeks redress. To 9 provide adequate notice, the prisoner need only provide the level of detail required by the prison’s 10 regulations. Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (citing Jones, 549 U.S. at 218). 11 The primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, 12 not to lay groundwork for litigation. Id; see also Jones, 549 U.S. at 219 (citing Johnson v. 13 Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We are mindful that the primary purpose of a 14 grievance is to alert prison officials to a problem, not to provide personal notice to a particular 15 official that he may be sued; the grievance process is not a summons and complaint that initiates 16 adversarial litigation.”); see also Griffin, 557 F.3d at 1120 (“The primary purpose of a grievance 17 is to alert the prison to a problem and facilitate its resolution, not to lay groundwork for 18 litigation.). Thus, in this case “[t]he California prison system’s requirements define the 19 boundaries of proper exhaustion.” Marella, 568 F.3d at 1027. 20 A prisoner may be excused from complying with the PLRA’s exhaustion requirement if 21 he establishes that the existing administrative remedies were effectively unavailable to him. See 22 Albino v. Baca (“Albino II”), 747 F.3d 1162, 1172-73 (9th Cir. 2014). When an inmate’s 23 administrative grievance is improperly rejected on procedural grounds, exhaustion may be 24 excused as “effectively unavailable.” Sapp, 623 F.3d at 823; see also Nunez v. Duncan, 591 F.3d 25 1217, 1224–26 (9th Cir. 2010) (warden’s mistake rendered prisoner’s administrative remedies 26 “effectively unavailable”); Ward v. Chavez, 678 F.3d 1042, 1044-45 (9th Cir. 2012) (exhaustion 27 excused where futile); Brown v. Valoff, 422 F.3d 926, 940 (9th Cir. 2005) (plaintiff not required 28 to proceed to third level where appeal granted at second level and no further relief was available); 1 Marella, 568 F.3d 1024 (excusing an inmate’s failure to exhaust because he did not have access 2 to the necessary grievance forms to timely file his grievance). 3 A California prisoner is required to submit an inmate appeal at the appropriate level and 4 proceed to the highest level of review available to him. Butler v. Adams, 397 F.3d 1181, 1183 5 (9th Cir. 2005); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002); see also Cal. Code Regs. 6 tit. 15, § 3084.1(b) (explaining that a cancellation or rejection of an inmate’s appeal “does not 7 exhaust administrative remedies”). However, a prisoner need not “press on to exhaust further 8 levels of review once he has received all ‘available’ remedies at an intermediate level of review 9 or has been reliably informed by an administrator that no remedies are available.” Brown, 422 10 F.3d at 936 (citing Booth, 532 U.S. at 736–739; see also Finley v. Skolnik, 616 Fed. Appx. 263, 11 264 (9th Cir. 2015) (Reversing dismissal for failure to exhaust). Where prison officials 12 improperly screen out inmate grievances, they render administrative remedies effectively 13 unavailable. See Sapp, 623 F.3d at 823. In such a case, “the inmate cannot pursue the necessary 14 sequence of appeals.” Id.; see also Nunez, 591 F.3d at 1226 (excusing an inmate’s failure to 15 exhaust because he was precluded from exhausting administrative remedies by a warden’s 16 mistaken instruction to him that a particular unavailable document was needed for him to pursue 17 his inmate appeal). 18 In submitting an inmate grievance, California regulations required a prisoner to “list all 19 staff members involved” and to “describe their involvement in the issue.” Cal. Code Regs. tit. 20 15, § 3084.2(3). However, the Ninth Circuit has held that “a prisoner exhausts such 21 administrative remedies as are available . . . under the PLRA despite failing to comply with a 22 procedural rule if prison officials ignore the procedural problem and render a decision on the 23 merits of the grievance at each available step of the administrative process.” Reyes v. Smith, 810 24 F.3d 654, 658 (9th Cir. 2016); see also Franklin v. Foulk, 2017 WL 784894, at *4-5 (E.D. Cal. 25 Mar. 1, 2017); Franklin v. Lewis, 2016 WL 4761081, at *6 (N.D. Cal. Sept. 13, 2016). Thus, a 26 prisoner’s failure to list all staff members involved in an incident in his inmate grievance, or to 27 fully describe the involvement of staff members in the incident, will not necessarily preclude his 28 exhaustion of administrative remedies. Reyes, 810 F.3d at 958; Franklin, 2017 WL 784894, at 1 *4 (“[T]he court in Reyes found that even though the plaintiff’s grievance failed to name two 2 physicians on the prison’s three-person pain committee, prison officials were put on notice of the 3 nature of the wrong alleged in the suit—that the plaintiff was wrongfully denied pain 4 medication.”); Franklin, 2016 WL 4761081, at *6 (“[T]o the extent Defendants argue that 5 Plaintiff failed to comply with a procedural requirement by not naming Defendants in [his 6 appeal], this deficiency is not necessarily fatal to Plaintiff’s claim pursuant to Reyes”); Grigsby 7 v. Munguia, No. 2:14-cv-0789 GAB AC P, 2016 WL 900197, at *11-12 (E.D. Cal. Mar. 9, 2016); 8 see also Bulkin v. Ochoa, 2016 WL 1267265, at *1-2 (E.D. Cal. Mar. 31, 2016). 9 Nonetheless, for administrative remedies to be exhausted by California prisoners as to 10 defendants who were not identified in the inmate grievance, there must be a “sufficient 11 connection” between the claim in the appeal and the unidentified defendants such that prison 12 officials can be said to have had “notice of the alleged deprivation” and an “opportunity to resolve 13 it.” Reyes, 810 F.3d at 959 (finding that plaintiff had satisfied PLRA exhaustion requirements as 14 to two prison doctors despite not having identified them in his inmate appeals because there was 15 a sufficient connection between plaintiff’s appeal based on inadequate pain management, and the 16 doctors, who served on the prison committee that had denied plaintiff medication); McClure v. 17 Chen, No. 1:14-cv-00932-DAD-GSA-PC, 2017 WL 1148135, (E.D. Cal. March 28, 2017) 18 (remedies exhausted even though doctors not named in appeal; prison was placed on notice)) . 19 The PLRA exhaustion requirement creates an affirmative defense, and defendants bear 20 the burden of raising and proving the absence of exhaustion. See Jones, 549 U.S. at 216 21 (“[I]nmates are not required to specially plead or demonstrate exhaustion in their complaints.”) 22 Moreover, a prisoner may be excused from complying with the PLRA’s exhaustion requirement 23 if he establishes that the existing administrative remedies were effectively unavailable to him. 24 Albino v. Baca (“Albino I”), 697 F.3d 1023, 1031 (9th Cir. 2012). 25 2. California Department of Corrections and Rehabilitation (CDCR) 26 Administrative Grievance System 27 The Court takes judicial notice of the fact that the State of California provides its prisoners 28 and parolees the right to appeal administratively “any policy, decision, action, condition, or 1 omission by the department or its staff that the inmate or parolee can demonstrate as having a 2 material adverse effect upon his or her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3 3084.1(a) (2015). The process is initiated by submitting a CDCR Form 602. Id. at § 3084.2(a) 4 (2015). 5 At the time of the events giving rise to the present action (in 2015), California prisoners 6 were required to submit appeals within thirty calendar days of the event being appealed, and the 7 process was initiated by submission of the appeal to first level unless the first level is exempted. 8 Id. at § 3084.7(a), 3084.8 (2015). Three levels of appeal were involved, including the first level, 9 second level, and third level. Id. at § 3084.7 (2015). A final decision at the third level of review 10 satisfied the exhaustion requirement under 42 U.S.C. § 1997e(a). Id. at § 3084.7(d); see Lira v. 11 Herrera, 427 F.3d 1164, 1166 (9th Cir. 2005). 12 In order to satisfy § 1997e(a), California state prisoners are required to use this process 13 to exhaust their claims prior to filing suit. Woodford, 548 U.S. at 85 (2006); McKinney, 311 14 F.3d. at 1199-1201. A California prisoner is required to submit an inmate appeal at the 15 appropriate level and proceed to the highest level of review available to him. Butler, 397 F.3d at 16 1183; Bennett, 293 F.3d at 1098. 17 3. Motion for Summary Judgment for Failure to Exhaust 18 The failure to exhaust in compliance with section 1997e(a) is an affirmative defense under 19 which Defendants have the burden of raising and proving the absence of exhaustion. Jones, 549 20 U.S. at 216; Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). On April 3, 2014, the United 21 States Court of Appeals for the Ninth Circuit issued a decision overruling Wyatt with respect to 22 the proper procedural device for raising the affirmative defense of exhaustion under § 1997e(a). 23 Albino II, 747 F.3d at 1168–69 (en banc). Following the decision in Albino II, defendants may 24 raise exhaustion deficiencies as an affirmative defense under § 1997e(a) in either (1) a motion to 25 dismiss pursuant to Rule 12(b)(6)4 or (2) a motion for summary judgment under Rule 56. Id. If 26 the court concludes that Plaintiff has failed to exhaust, the proper remedy is dismissal without 27 28 4 Motions to dismiss under Rule 12(b)(6) are only appropriate “[i]n the rare event a failure to exhaust is clear on the face of the complaint.” Albino II, 747 F.3d at 1162. 1 prejudice of the portions of the complaint barred by § 1997e(e). Jones, 549 U.S. at 223–24; Lira, 2 427 F.3d at 1175–76. 3 Summary judgment is appropriate when it is demonstrated that there “is no genuine 4 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 5 R. Civ. P. 56(a); Albino II, 747 F.3d at 1169 (“If there is a genuine dispute about material facts, 6 summary judgment will not be granted.”) A party asserting that a fact cannot be disputed must 7 support the assertion by “citing to particular parts of materials in the record, including 8 depositions, documents, electronically stored information, affidavits or declarations, stipulations 9 (including those made for purposes of the motion only), admissions, interrogatory answers, or 10 other materials, or showing that the materials cited do not establish the absence or presence of a 11 genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 12 Fed. R. Civ. P. 56(c)(1). The court may consider other materials in the record not cited to by the 13 parties, but is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified 14 School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo County, Ariz., 15 609 F.3d 1011, 1017 (9th Cir. 2010). In judging the evidence at the summary judgment stage, 16 the court “must draw all reasonable inferences in the light most favorable to the nonmoving 17 party.” Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 18 (9th Cir. 2011). The court must liberally construe Plaintiff’s filings because he is a pro se 19 prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations 20 omitted). 21 In a summary judgment motion for failure to exhaust administrative remedies, the 22 defendants have the initial burden to prove “that there was an available administrative remedy, 23 and that the prisoner did not exhaust that available remedy.” Albino II, 747 F.3d at 1172. If the 24 defendants carry that burden, “the burden shifts to the prisoner to come forward with evidence 25 showing that there is something in his particular case that made the existing and generally 26 available administrative remedies effectively unavailable to him.” Id. The ultimate burden of 27 proof remains with defendants, however. Id. “If material facts are disputed, summary judgment 28 /// 1 should be denied, and the district judge rather than a jury should determine the facts.” Id. at 2 1166. 3 In arriving at these findings and recommendations, the court carefully reviewed and 4 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 5 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 6 reference to an argument, document, paper, or objection is not to be construed to the effect that 7 this court did not consider the argument, document, paper, or objection. This court thoroughly 8 reviewed and considered the evidence it deemed admissible, material, and appropriate. 9 C. Defendants’ Motion for Summary Judgment Based on Exhaustion 10 Defendants Cantu, Gutierrez, and Mattingly argue that Plaintiff did not exhaust his 11 available remedies for his excessive force claims against them before filing this lawsuit. 12 Defendants assert that Plaintiff had an administrative remedy available to him at CCI provided 13 by the CDCR as set forth in Cal. Code Regs. tit. 15, § 3084 et seq., and that the grievance process 14 was clearly available to him since he filed a grievance related to another incident that happened 15 on February 25, 2015, the very same date as the force at issue in his First Amended Complaint. 16 (Dec. of J. Stone (“Stone Dec.”), ECF No. 47-5 at ¶ 12(a) and Exs. 1 & 2; Dec. of Howard E. 17 Moseley (“Moseley Dec.”), ECF No. 47-4 at ¶ 8 and Ex. 2.) In addition, Plaintiff has filed at 18 least sixteen appeals through the Third Level of Review during his time of incarceration, and was 19 therefore clearly aware of the grievance procedure. (Moseley Dec. at ¶ 6 and Ex. 1.) 20 Defendants present evidence that Plaintiff did not file any grievance with CCI, or through 21 the third level of review, that named or referenced Defendants Cantu, Mattingly, or Gutierrez in 22 relation to a use-of-force incident that occurred on February 25, 2015. (Stone Dec. at ¶ 13.) Nor 23 did Plaintiff file any appeals with the OOA referencing any allegations against Defendants Cantu, 24 Mattingly or Gutierrez or referencing any excessive force used on Plaintiff on February 25, 2015. 25 (Moseley Dec. at ¶ 11.) 26 Defendants’ Burden 27 The court finds that Defendants Cantu, Gutierrez, and Mattingly have carried their initial 28 burden to prove that there was an available administrative remedy and that Plaintiff did not 1 exhaust that available remedy. Therefore, the burden shifts to Plaintiff to come forward with 2 evidence showing that he did exhaust the available remedies for his excessive force claims 3 against Defendants Cantu, Gutierrez, and Mattingly, or that there is something in his particular 4 case that made the existing and generally available administrative remedies effectively 5 unavailable to him. 6 Plaintiff’s Opposition 7 Plaintiff asserts that relative to the allegation that on February 25, 2015, Plaintiff 8 committed aggravated battery on Defendant Cantu by spitting on his face and attempted to strike 9 Defendant Gutierrez with his shoulder, Plaintiff filed three administrative appeals at CCI that 10 department officials refused to respond to. 11 Plaintiff argues that the grievance process is not available to him because of 12 “disciplinary” corrections denying him due process and equal protection rights for the last ten 13 years of incarceration. 14 Discussion 15 Defendants have presented evidence that Plaintiff never filed a grievance at CCI that 16 addresses the excessive force incident on February 25, 2015 upon which this case proceeds. 17 Defendants’ undisputed facts are taken as true since Plaintiff failed to properly address 18 Defendants’ statement of undisputed facts. Local Rule 260(b).5 19 The undisputed facts show that an appeals system was available to Plaintiff, but Plaintiff 20 did not use it to exhaust his remedies for his excessive force claims at issue in this case. The 21 Undisputed Facts show as follows: 22 Plaintiff’s original Complaint was filed on February 14, 2019, and the First 23 Amended Complaint, upon which this case proceeds was filed on September 10, 24 2020. (ECF Nos. 1, 22.) Plaintiff now proceeds against Defendants Cantu, 25 5 “Any party opposing a motion for summary judgment or summary adjudication shall 26 reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are 27 undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in 28 support of that denial.” Local Rule 260(b). 1 Mattingly, and Gutierrez for use of excessive force during an incident that 2 allegedly occurred on February 25, 2015. (ECF Nos. 24, 27.) 3 At the time of the matters at issue in the Complaint, CDCR had a 4 comprehensive administrative appeals system for prisoners’ complaints. 5 (Declaration of J. Stone (“Stone Dec.) at ¶¶ 3- 9; Declaration of H. Moseley 6 (“Moseley Dec.”) at ¶ 4; Cal Code Regs., tit. 15, sections 3084.1(a) – 3084.7.) 7 Plaintiff is well-acquainted with the appeals system; he has submitted, and 8 exhausted, at least sixteen (16) appeals through the Third Level of Appeal during 9 the time that he has been incarcerated with CDCR and also submitted a number 10 of appeals through the Third Level that were screened out. (Moseley Dec. at ¶ 6 11 and Ex. 1.) 12 Grievance Log No. CCI-15-01041 13 On or about May 18, 2015, Plaintiff submitted an institutional grievance 14 that was assigned Grievance Log No. CCI-15-01041. The grievance challenged 15 the guilty finding on a Rules Violation Report (“RVR”) Plaintiff received for 16 assaulting Defendant Cantu on February 4, 2015. (Stone Dec. at ¶ 12(a) and Exs. 17 1 & 2; Moseley Dec. at ¶ 8 and Ex. 2.) This grievance did not reference 18 Defendants Gutierrez or Mattingly at all. (Stone Dec. at ¶ 12(a) and Ex. 2; 19 Moseley Dec. at ¶ 8 and Ex. 2.) Also, this grievance did not include any 20 allegations that anyone used excessive force on Plaintiff on February 25, 2015, or 21 reference any force incident from February 25, 2015 at all. (Stone Dec. at ¶ 12(a) 22 and Ex. 2; Moseley Dec. at ¶ 8 and Ex. 2.) 23 Grievance Log No. CCI-15-01573 24 On July 27, 2015, Plaintiff submitted an institutional grievance at CCI that 25 was assigned Grievance Log No. CCI-15-01573 and included allegations that a 26 Correctional Officer issued a misleading RVR to Plaintiff on April 16, 2015. 27 (Stone Dec. at ¶ 12(b) and Exs. 1 & 3; Moseley Dec. at ¶ 9 and Ex. 3.) There is 28 no reference in this appeal to any force being used on Plaintiff on February 25, 1 2015, and neither Defendant Cantu, Mattingly, nor Gutierrez were referenced in 2 this grievance. (Stone Dec. at ¶ 12(b) and Exs. 1 & 3; Moseley Dec. at ¶ 9 and 3 Ex. 3.) 4 Other than Appeal Nos. 1500225 (appeal of Grievance Log No. CCI-15- 5 01041) and 1502925 (appeal of Grievance Log No. CCI-15-01573), Plaintiff did 6 not file any other appeals to the Office Of Appeals (“OOA”) during the year 2015. 7 (Moseley Dec. at ¶ 10 and Ex. 1.) Plaintiff did not file any grievances with CCI’s 8 appeal office or the OOA referencing any allegations against Defendants Cantu, 9 Mattingly or Gutierrez or referencing any excessive force used on Plaintiff on 10 February 25, 2015. (Id.) 11 The burden then shifted to Plaintiff to come forward with evidence showing that he 12 exhausted the available remedies for his excessive force claims against Defendants Cantu, 13 Gutierrez, and Mattingly, or that there was something in his particular case that made the existing 14 and generally available administrative remedies effectively unavailable to him. Plaintiff has not 15 carried his burden. Plaintiff offers no evidence disproving any of Defendants’ Undisputed Facts, 16 nor does he present evidence proving that he properly exhausted the remedies that were available 17 to him for his excessive force claims against Defendants Cantu, Mattingly, and Gutierrez. 18 Conclusion 19 The court finds, based on the record before it, that Plaintiff failed to exhaust his available 20 administrative remedies for his excessive force claims against defendants Cantu, Gutierrez, and 21 Mattingly, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Therefore, 22 Defendants’ motion for summary judgment based on Plaintiff’s failure to exhaust his remedies, 23 filed on September 15, 2021, should be granted, and Plaintiff’s excessive force claims against 24 Defendants Cantu, Gutierrez, and Mattingly should be dismissed. 25 /// 26 /// 27 /// 28 /// 1 V. SUMMARY JUDGMENT BASED ON HECK v. HUMPHREY 2 A. Legal Standards 3 1. Heck Bar 4 When a prisoner challenges the legality or duration of his custody, or raises a 5 constitutional challenge which could entitle him to an earlier release, his sole federal remedy is 6 a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 7 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an 8 allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff must prove that the 9 conviction or sentence has been reversed on direct appeal, expunged by executive order, declared 10 invalid by a state tribunal authorized to make such determination, or called into question by a 11 federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck, 512 U.S. at 487- 12 88. “A claim for damages bearing that relationship to a conviction or sentence that has not been 13 so invalidated is not cognizable under § 1983.” Id. at 488. This “favorable termination” 14 requirement has been extended to actions under § 1983 that, if successful, would imply the 15 invalidity of prison administrative decisions which result in a forfeiture of good-time credits. 16 Edwards v. Balisok, 520 U.S. 641, 643–647 1997). 17 2. Penal Code § 69 18 Penal Code § 69 makes it a crime for one “who attempts, by means of any threat or 19 violence, to deter or prevent an executive officer from performing any duty imposed upon the 20 officer by law, or who knowingly resists, by the use of force or violence, the officer, in the 21 performance of his or her duty.” “[U]nder California law, it is a ‘well-established rule that when 22 a statute makes it a crime to commit any act against a peace officer engaged in the performance 23 of his or her duties, part of the corpus delicti of the offense is that the officer was acting lawfully 24 at the time the offense was committed.’” Torres v. Rule, 2019 U.S. Dist. LEXIS 197980 (C.D. 25 Cal. Oct. 2, 2019 (citing People v. Cruz, 44 Cal. 4th 636, 673 (2008).) 26 To be convicted of a violation of Cal. Penal Code § 69, it must be established that the 27 officer was engaged “in the performance of his duty.” Cal. Penal Code § 69. This requires that 28 the officer be engaged in the “lawful” performance of his official duties. Arellano v. Haskins, 1 No. 117CV01235NONEJLT, 2021 WL 1193814, at *4 (E.D. Cal. Mar. 30, 2021) (citing see 2 People v. Simons, 42 Cal. App. 4th 1100, 1108 (1996)). 3 B. Defendants’ Request for Judicial Notice – Fed. R. Evid 201 4 “The court may judicially notice a fact that is not subject to reasonable dispute because it 5 is generally known within the trial court’s territorial jurisdiction; or can be accurately and readily 6 determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 7 201(b). “Facts are indisputable, and thus subject to judicial notice, only if they either ‘generally 8 known’. . . or capable of accurate and ready determination by resort to sources whose accuracy 9 cannot be questioned[.]” United States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir. 2003) (citing 10 Fed. R. Evid. 201(b)). 11 Documents that are part of the public record may be judicially noticed to show, for 12 example, that a judicial proceeding occurred or that a document was filed in another court case, 13 but a court may not take judicial notice of findings of facts from another case. See Wyatt, 315 14 F.3d at 1114 & n. 5; Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001); U.S. v. Jones, 15 29 F.3d 1549, 1553 (11th Cir. 1994). Nor may the court take judicial notice of any matter that is 16 in dispute. Lee, 250 F.3d at 689–90; Lozano v. Ashcroft, 258 F.3d 1160, 1165 (10th Cir. 2001). 17 The Court may judicially notice the records and filing of other court proceedings. Tellabs, 18 Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Bennett v. Medtronic, Inc., 285 19 F.3d 801, 802 n.2 (9th Cir. 2002). In particular, we “may take notice of proceedings in other 20 courts, both within and without the federal judicial system, if those proceedings have a direct 21 relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v. 22 Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992); see also Smith v. Duncan, 297 F.3d 809, 815 23 (9th Cir. 2002) (taking judicial notice of the “relevant state court documents, because those 24 documents have a direct relationship to [petitioner’s habeas] appeal”), abrogation on other 25 grounds recognized by Moreno v. Harrison, 245 Fed.Appx. 606 (9th Cir. 2007). 26 /// 27 /// 28 1 Defendants request the court to take judicial notice of state court records from prior 2 actions concerning Plaintiff. (ECF No. 47-2.) Specifically, they request that the Court take 3 judicial notice of the following court records: 4 1. Exhibit 1: Felony Amended Information for Kern County Superior Court Case 5 No. MF011761A; 6 2. Exhibit 2: Court Minutes for Kern County Superior Court Case No. MF011761A 7 related to sentencing; and 8 3. Exhibit 3: Abstract of Judgment for Kern County Superior Court Case No. 9 MF011761A. 10 Plaintiff has not denied the authenticity of the documents or that he faced criminal charges 11 in state court relevant to the case at hand. Consequently, the court takes judicial notice of the 12 documents submitted by Defendants, which are part of the record from Plaintiff’s underlying 13 state court matters. 14 C. Defendants’ Motion for Summary Judgment Based on Heck 15 Defendants argue that Plaintiff’s action and claim for a violation of the Eighth 16 Amendment is barred by the “favorable-termination rule” set forth in the holding of Heck v. 17 Humphrey, 512 U.S. 477, 483-87 (1994) because success in this litigation would imply the 18 invalidity of Plaintiff’s conviction for the same incident. 19 Defendants’ Undisputed Facts show that Plaintiff was convicted of violating Penal Code 20 § 69 as against Defendant Gutierrez for the incident that occurred on February 25, 2015 which is 21 referenced in Plaintiff’s First Amended Complaint, and Plaintiff was sentenced to 25 years-to- 22 life for violating Penal Code § 69 on February 25, 2015. (Defendants’ Request for Judicial Notice 23 (“RJN”) and Ex. 1 to same, ECF No. 47-2 at 2:8-16 and 4-15 (Ex. 1)). 24 Plaintiff alleged in the First Amended Complaint that “for no viable penological reasons” 25 Defendants “abruptly threw” him face first to the ground and beat him with their feet and batons. 26 (ECF No. 22 at 5.) However, Defendants argue that Plaintiff’s conviction of Penal Code § 69 27 establishes that there was a valid penological reason for Defendants’ actions on February 25, 28 2015 and that Plaintiff explicitly used force or violence to prevent Defendant Gutierrez from 1 performing his duties in escorting Plaintiff. Defendants also argue that Plaintiff’s conviction 2 establishes that Defendants were acting lawfully at the time the offense was committed, thus 3 Plaintiff cannot sustain the instant civil case which would require an entirely incongruent finding 4 to those underlying Plaintiff’s criminal conviction. 5 Plaintiff’s Opposition 6 Plaintiff asserts that relative to the allegation that on February 25, 2015, Plaintiff 7 committed aggravated battery on Defendant Cantu by spitting on his face and attempted to strike 8 Defendant Gutierrez with his shoulder, Plaintiff filed three administrative appeals at CCI that 9 department officials refused to respond to. 10 Discussion 11 Plaintiff’s claim for the use of excessive force implies the arrest was “unlawful” because 12 “it is a public offense for a peace officer to use unreasonable and excessive force in effecting an 13 arrest.” People v. Olguin, 119 Cal. App. 3d 39, 45 (1981). Thus, a determination that the 14 defendants used excessive force in the course of the arrest would require a finding that the officers 15 were not engaged in the lawful performance of their duty, and that the conviction under Section 16 69 is invalid. See Heck, 512 U.S. at 487; see also Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 17 1996) (“a criminal conviction arising out of the same facts stands and is fundamentally 18 inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 19 action must be dismissed”)[.] 20 Plaintiff has not challenged Defendants’ evidence that he was convicted of violating 21 Penal Code § 69 as against Defendant Gutierrez for the incident that occurred on February 25, 22 2015, which is referenced in Plaintiff’s First Amended Complaint, nor does he dispute that the 23 conviction has not been reversed, expunged, declared invalid, or called into question by the 24 issuance of a writ of habeas corpus. 25 Here, Plaintiff’s First Amended Complaint serves as an affidavit in opposition to 26 summary judgment because it is based on Plaintiff’s firsthand personal knowledge of the events 27 surrounding the excessive force incident, and he states that the facts in the First Amended 28 Complaint are true under penalty of perjury. (See ECF No. 22 at 11.) Thus, Plaintiff’s assertion 1 in the First Amended Complaint that “‘for no viable penological reasons,’ Defendants W. 2 Gutierrez and Mattingly ‘abruptly threw me to the ground face first where defendants Gutierrez, 3 Mattingly, and Cantu . . .then began to beat me with their hands, feet, and batons,’” necessarily 4 implicates the validity of his conviction in state court for violating California Penal Code § 69, 5 and his excessive use of force claim brought in this action is Heck barred. (ECF No. 22 at 5.) 6 Conclusion 7 Based on the foregoing, the court finds that Defendants’ motion for summary judgment 8 pursuant to Heck v. Humphrey should be granted, without prejudice to filing a new petition for 9 writ of habeas corpus. 10 V. RECOMMENDATIONS AND CONCLUSION 11 For the reasons set forth above, the court finds that Plaintiff failed to exhaust his 12 administrative remedies for his excessive force claims against Defendants Cantu, Gutierrez, and 13 Mattingly before filing this lawsuit, and this case is also barred by Heck v. Humphrey. Therefore, 14 this case should be dismissed, without prejudice to filing a new petition for writ of habeas corpus. 15 Therefore, based on the foregoing, IT IS HEREBY RECOMMENDED that: 16 1. Defendants’ motion for summary judgment based on Plaintiff’s failure to exhaust 17 administrative remedies, and as barred by Heck v. Humphrey, filed on February 18 14, 2019, be granted, without prejudice to filing a petition for writ of habeas 19 corpus; 20 2. All pending motions be denied as moot; and 21 3. The Clerk be directed to close this case. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 24 (14) days after being served with these findings and recommendations, any party may file written 25 objections with the court. Such a document should be captioned “Objections to Magistrate 26 Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 27 within ten days after service of the objections. The parties are advised that failure to file 28 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 1 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 2 (9th Cir. 1991)). 3 IT IS SO ORDERED. 4 5 Dated: February 9, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28